Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016 (15 of 2016)

Schedule 2   False accounting

Criminal Code Act 1995

1   At the end of Chapter 10 of the Criminal Code

Add:

Part 10.9 - Accounting records

Division 490 - False dealing with accounting documents

490.1 Intentional false dealing with accounting documents

(1) A person commits an offence if:

(a) the person:

(i) makes, alters, destroys or conceals an accounting document; or

(ii) fails to make or alter an accounting document that the person is under a duty, under a law of the Commonwealth, a State or Territory or at common law, to make or alter; and

(b) the person intended the making, alteration, destruction or concealment of the document (or the failure to make or alter the document) to facilitate, conceal or disguise the occurrence of one or more of the following:

(i) the person receiving a benefit that is not legitimately due to the person;

(ii) the person giving a benefit that is not legitimately due to the recipient, or intended recipient, of the benefit;

(iii) another person receiving a benefit that is not legitimately due to the other person;

(iv) another person giving a benefit that is not legitimately due to the recipient, or intended recipient, of the benefit (who may be the first-mentioned person);

(v) loss to another person that is not legitimately incurred by the other person; and

(c) one or more of the circumstances referred to in subsection (2) applies.

(2) For the purposes of paragraph (1)(c) of this section or paragraph 490.2(1)(c), the circumstances are:

(a) the person is:

(i) a constitutional corporation, or a corporation that is incorporated in a Territory; or

(ii) an officer or employee of a constitutional corporation acting in the performance of his or her duties or the carrying out of his or her functions; or

(iii) a person engaged to provide services to a constitutional corporation and acting in the course of providing those services; or

(iv) a Commonwealth public official acting in the performance of his or her duties or the carrying out of his or her functions; or

(b) the person's act or omission referred to in paragraph (1)(a):

(i) occurs in a Territory; or

(ii) occurs outside Australia; or

(iii) concerns matters or things outside Australia; or

(iv) facilitates or conceals the commission of an offence against a law of the Commonwealth; or

(c) the accounting document:

(i) is outside Australia; or

(ii) is in a Territory; or

(iii) is kept under or for the purposes of a law of the Commonwealth; or

(iv) is kept to record the receipt or use of Australian currency.

(3) Absolute liability applies to paragraph (1)(c).

Note: For absolute liability, see section 6.2.

Penalty for individual

(4) An offence against this section committed by an individual is punishable on conviction by imprisonment for not more than 10 years, a fine not more than 10,000 penalty units, or both.

Penalty for body corporate

(5) An offence against this section committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following:

(a) 100,000 penalty units;

(b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence - 3 times the value of that benefit;

(c) if the court cannot determine the value of that benefit - 10% of the annual turnover of the body corporate during the period (the turnover period ) of 12 months ending at the end of the month in which the conduct constituting the offence occurred.

490.2 Reckless false dealing with accounting documents

(1) A person commits an offence if:

(a) the person:

(i) makes, alters, destroys or conceals an accounting document; or

(ii) fails to make or alter an accounting document that the person is under a duty, under a law of the Commonwealth, a State or Territory or at common law, to make or alter; and

(b) the person is reckless as to whether the making, alteration, destruction or concealment of the document (or the failure to make or alter the document) facilitates, conceals or disguises the occurrence of one or more of the following:

(i) the person receiving a benefit that is not legitimately due to the person;

(ii) the person giving a benefit that is not legitimately due to the recipient, or intended recipient, of the benefit;

(iii) another person receiving a benefit that is not legitimately due to the other person;

(iv) another person giving a benefit that is not legitimately due to the recipient, or intended recipient, of the benefit (who may be the first-mentioned person);

(v) loss to another person that is not legitimately incurred by the other person; and

(c) one or more of the circumstances referred to in subsection 490.1(2) applies.

(2) Absolute liability applies to paragraph (1)(c).

Note: For absolute liability, see section 6.2.

Penalty for individual

(3) An offence against this section committed by an individual is punishable on conviction by imprisonment for not more than 5 years, a fine not more than 5,000 penalty units, or both.

Penalty for body corporate

(4) An offence against this section committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following:

(a) 50,000 penalty units;

(b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence - 1.5 times the value of that benefit;

(c) if the court cannot determine the value of that benefit - 5% of the annual turnover of the body corporate during the period (the turnover period ) of 12 months ending at the end of the month in which the conduct constituting the offence occurred.

490.3 Meaning of annual turnover

(1) For the purposes of this Division, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than the following supplies:

(a) supplies made from any of those bodies corporate to any other of those bodies corporate;

(b) supplies that are input taxed;

(c) supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999);

(d) supplies that are not made in connection with an enterprise that the body corporate carries on.

(2) Expressions used in this section that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in this section as they have in that Act.

490.4 Related bodies corporate

The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this Division in the same way as for the purposes of the Corporations Act 2001.

490.5 Proof of certain matters unnecessary

In a prosecution for an offence against this Division, it is not necessary to prove:

(a) the occurrence of any of the following:

(i) the defendant receiving or giving a benefit;

(ii) another person receiving or giving a benefit;

(iii) loss to another person; or

(b) that the defendant intended that a particular person receive or give a benefit, or incur a loss.

490.6 Consent to commencement of proceedings

(1) Proceedings for an offence against this Division must not be commenced without the Attorney-General's written consent if:

(a) the conduct constituting the alleged offence occurs wholly in a foreign country; and

(b) at the time of the alleged offence, the person alleged to have committed the offence is none of the following:

(i) an Australian citizen;

(ii) a resident of Australia;

(iii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

(2) However, a person may be arrested for, charged with, or remanded in custody or released on bail in connection with an offence against this Division before the necessary consent has been given.

490.7 Saving of other laws

This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.